Category Archives: law

More on Birthright Citizenship

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Jed Rubenfeld, Professor of Law at Yale Law School, had an op-ed in Sunday’s Wall Street Journal in support of the concept of birthright citizenship. In it, he hung his hat on the “visitor” aspect of our Constitution’s 14th Amendment jurisdiction phrasing.

The 14th Amendment guarantees citizenship to everyone “born or naturalized in the United States, and subject to the jurisdiction thereof.” The opacity of the “jurisdiction” language allows reasonable people to land on either side of this issue. But in 19th-century legal usage, being “subject to the jurisdiction” of the US had a long-settled, straightforward meaning. As Chief Justice John Marshall explained in Schooner Exchange v McFaddon (1812), it meant being subject to US law.
Could you be prosecuted in an American court and imprisoned in an American jail for violating American law? If so, you were subject to US jurisdiction.

That “vulnerable to prosecution and jail” means “subject to US law” is at the core of the misunderstanding here (I’m eliding the question of whether a then-56-yr-old “settled meaning” remained settled after the 14th Amendment was ratified), including to birth tourism—whereby a pregnant woman enters the US for the express and sole purpose of giving birth on US soil so as to garner citizenship for her baby, after which the now-mother leaves with her baby to return to her home nation. Such “visitors,” while so subject, are not subject to US jurisdiction, but only to US government power and authority.

Birth tourists subject themselves only to some of our laws—that small subset of them that lets them enter our nation legally and then avail themselves of our medical-related duty of care laws. They otherwise remain within the control of their home nation laws and so retain the jurisdiction of their home countries, to which they fully intend to return as soon as they’re able to travel after giving birth. They’re holding themselves apart from and outside of our nation’s full and complete jurisdiction—which is what our 14th Amendment requires, even for birth tourists.

Illegal aliens go even farther: they hold themselves completely outside our jurisdiction by holding themselves completely outside our laws: they’ve disregarded our laws from the outset by their entering illegally. They render themselves subject only to the power of our government even as they, too, are subject prosecution and jail—or deportation.

This misunderstanding by Rubenfeld (and others) expands on the matter:

When a foreign army invades and conquers another country’s territory, that land becomes subject to the conquering country’s laws.

Not at all. That conquered territory becomes subject only to the conquering country’s power and ability to impose its laws. Even as long ago as Emer de Vattel, in his The Law of Nations, this was well understood.

The Left’s repeated ignoring of these simple facts does not make those facts nonexistent.

Unfortunately (cynically?), Rubenfeld, like others pushing this argument, leave wholly unaddressed those last.

Busting a Human Trafficking Ring

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Federal agents busted up a Guatemalan gang that had trafficked 20,000 illegal aliens into the US from Guatemala since 2019, at 15-18 stacks per illegal. In downtown Los Angeles,

Federal agents arrested two Guatemalan men on Friday accused of operating one of the largest human smuggling operations in the United States.

Acting US Attorney Joseph McNally:

These smuggling organizations have no regard for human life and their conduct kills. The indictment and arrests here have dismantled one of the country’s largest and most dangerous smuggling organizations.

Notice that: Federal agents got this done, not Sanctuary State agents. This is the governor who wants to be President.

In Which our Courts are Failing

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The question here is what standard courts should apply in matters of reverse discrimination. The question is laid out in The Wall Street Journal article’s lede:

Amid a MAGA-led backlash to diversity, equity, and inclusion policies, the Supreme Court on Wednesday will consider an issue that has split judges around the country: what do white people and other members of a majority group have to prove to win a claim for reverse discrimination?

(Aside: the newswriters’—Jess Bravin and Erin Mulvaney—irrelevant reference to MAGA illustrates their own and their editor’s political bias.)

The question is expanded in the second paragraph [emphasis added]:

Marlean Ames claims the Ohio state agency where she works denied her a promotion and then demoted her because she is heterosexual, instead giving both her old job and the one she had sought to gay people. A federal appeals court in Cincinnati threw out Ames’s lawsuit, finding that she failed to show the “background circumstances” suggesting the employer was hostile to straight people—a threshold step that wouldn’t have been required had a gay employee claimed discrimination.

As the writers noted shortly after:

The Civil Rights Act of 1964 forbids employment discrimination because of an “individual’s race, color, religion, sex, or national origin….”

Lauren Hartz, DC-located partner in Jenner & Block raised this bit:

We are in disagreement about what groups in American society today are advantaged or disadvantaged[.]

This is a wholly constructed and cynically dragged red herring. The only advantaged groups are those groups of Americans who get favorable treatment from our courts compared to other groups of Americans, and the only disadvantaged groups of Americans are those groups of Americans at whose expense that advantageous treatment comes.

Civil rights groups have raised another irrelevancy:

Many civil-rights groups say the occasional example of reverse discrimination doesn’t change history. Courts, according to a brief filed by the NAACP Legal Defense and Educational Fund, should be able to consider the “realities of this country’s persisting legacy of discrimination.”

The supposedly “occasional” nature of reverse discrimination is no excuse for any amount of that form of discrimination. Neither does it excuse the creation of a new legacy of discrimination for our future.

Thus: how about using the same standard for all cases involving allegations of discrimination?

How about judges and Justices hew to the text of black letter law and to the foundational text of the 14th Amendment of our Constitution?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That’s it in black and white; it’s not that hard to understand and to apply. As a Chief Justice of our Supreme Court said not so long ago, The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

There is no excuse for our court system, nor any judge or Justice within it, applying different standards of adjudication to different groups of Americans. Judges and Justices are violating their oaths of office when they do.

Why Not?

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The press’ “government officials” now say that President Donald Trump (R) is planning to eliminate the US Postal Service’s Board of Governors and fold the USPS into the Department of Commerce. On the other hand, a “White House official” says that’s not so.

For the hyperventilators in the audience, here is the sum and total of what our Constitution says about a postal service. It’s in Article I, Section 8:

[The Congress shall have Power…] To establish Post Offices and Post Roads

Nothing in there about establishing or maintaining a postal service, only the post offices, useful for dropping off and collecting mail and packages for transporting over those post roads—of latter which we have an enormous network of roads over which to carry that mail and those packages, along with extensive railroad and air shipping networks capable of the same. Those post offices are directly analogous, and no more useful than, FedEx and UPS drop-off and pickup offices.

A move to consolidate the USPS into Commerce has the potential of reducing duplicative governance. It also would give those with commerce expertise—to the extent such exists in the Federal government—control over what is, essentially, a commerce enterprise—the movement as shipper of First Class mail and packages as well as intermediary shipper of other shippers’ packages.

Of course, the better move would be to completely privatize the USPS and let it compete with existing shippers for the movement of all mail, including First Class, just as it does now with packages. USPS already has a serious advantage in such competition: a last mile network that reaches every household and business in the nation, which none of its potential competition (with the possible exception of Amazon, for its own exclusive use).

Still, consolidation would be a good start.

Speculative Lawsuits

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A collection of Leftist State Attorneys General led by New York’s Letitia James has filed an amicus brief in an existing suit against the Federal government over President Donald Trump’s (R) move to defund the Consumer Financial Protection Bureau. That might leave American banks without a government watchdog, they claim in their brief.

Furthermore, [t]he AGs didn’t accuse any banks of wrongdoing. These AGs further claim

The absence of a functioning CFPB…creates a regulatory vacuum even greater than what existed before the Great Recession. The very large financial institutions that compete with state-chartered banks will have carte blanche to loosen their regulatory compliance and profit accordingly.

Further, as cited by The Wall Street Journal,

The AGs argued that the administration is creating a regulatory gap that will encourage the largest banks to game the system by taking a more lax approach, while smaller state-chartered banks will still be subject to state supervision.

Might. Will have. And those two possibles in the latter: “will encourage” and “will still be.” These are purely speculative, with no harm being alleged. No actual wrong doing, in so many words, is being alleged. Basing a law suit, or even an amicus, on speculation about an unknown future—however likely plaintiffs might claim that future to be—is anathema in the American legal system. The requirement to allege—credibly—actual harm already done prevents a potful of frivolous, of politically motivated, of purely fee-seeking lawsuits where no harm exists, even where no harm is likely to exist in some nebulous future.

The Leftist AGs’ move is typical of the Left’s and their Progressive-Democratic Party politicians’ lawfare business.

This is yet another reason why it’s so difficult for us average Americans to have nice things in our nation. It’s time to start requiring plaintiffs to pay the defendants for the costs of lawsuits which plaintiffs bring and lose, and to require those providing amicus briefs on the side of plaintiffs to share in paying those costs.